VINOD SHANKER DAVE,J. - (1.) THIS appeal is directed against the judgment of Sessions Judge, Merta, dated July 20, 1978 by which he convicted the accused -appellant for offence under Sections 376 and 354 IPC and sentenced to three years' rigorous imprisonment and a fine of Rs. 4,000/ - and in default thereof to undergo six months' rigorous imprisonment on the first count and six months' rigorous imprisonment and a fine of Rs. 1,000/ - and in default to further undergo one month's rigorous imprisonment. Both the substantive sentences were made to run concurrently.
(2.) THE prosecution case started on a First Information Report lodged with Deputy Superintendent of Police, Nagore by Ganesh Ram on August 19, 1976 wherein it was alleged by him that on the previous evening after sun set when it was dark Gangaram son of Shiv Narain Jat came to his Dhani and told him that he wants Rs. 1600/ - as expenses on which he stated that he has no money. He thereafter threatened him with beating on which he got rid of him by saying that be will bring it from the village and give it to him. When he had gone Gangaram called Runki, his sister, in the sitting room which is known as 'Jhunpa' and there committed rape with her. At that time he and Bhinyaram came from village side. At that time Ganga Ram was engaged in committing sexual intercourse with her. His sister was weeping on which they challenged him (Gangaram) so he left her and ran away. It was further mentioned that the police station people are in favour of Gangaram and hence he has come to Nagore after leaving Mst. Runki at hospital. This report was forwarded to the Station House Officer, police station, Surpalia with the direction that she should be medically examined. At the police station Ganeshram's statement was recorded and a case was registered for offence under Sections 376/354 IPC. Mst. Runki was medically examined by Medical Jurist, Government Hospital, Nagore who stated that the age of the prosecutrix was about 17 years and as regards sexual intercourse he mentioned that he would only say after report of the chemical analyst. It was mentioned that she was having injury on the face which was a bite mark and left side of the chest and nowhere else thereby proving no stiff resistence. After completion of the investigation charge sheet was submitted against the accused -appellant before the Judicial Magistrate 1st class, Nagore for offence under Sections 354 and 376 IPC who committed him to Sessions. The learned Sessions Judge framed charges and the accused denied the same and claimed trial. At trial the prosecution examined as many as eight witnesses in support of its case. The accused -appellant took up the defence that there was political enmity with Bhinyaram and the whole case has been foisted because of him. He placed on record various documentary evidence to show the enmity with the other side. These documents include the judgments of various courts, notices issued by the accused as Sarpanch, First Information Report so no and so forth. He also examined Magnaram as a defence witness. The learned trial Judge convicted and sentenced the accused appellant as indicated above. Aggrieved by his conviction and sentence the accused -appellant has preferred this appeal. Mr. Singhvi, appearing on behalf of the accused -appellant, submitted that the learned Sessions Judge has fallen into an error in not assessing the evidence of the prosecutrix in true prospective. It is submitted that learned Sessions Judge has considered the various circumstances in isolation and on basis of same, though holding that the prosecutrix was not coming with a true story yet held her to be a reliable witness and based conviction on her statement. He submitted that there are inherent weaknesses in the case of the prosecution which could be proper checks and if the same would have been considered ingredients of the offence of rape are not at all satisfied in the circumstances of the case. It is submitted that the place of occurrence has been changed. In the First Information Report it was the 'Jhunpa' which was a sitting room in the house of informant Ganesh Ram, brother of the prosecutrix, while at trial it has been shown to be Dhundha which was at a distance of 100 pawandas from the Dhani where there is 'Jhunpa'. l00pawandas distance equals to 500 ft. and this Dhunda is a place which is used for tying the cattle. This change renders the prosecution story false. It is then sumbitted that the prosecutrix has admitted in her statement that she was sleeping in the Dhani when the accused had come and when he asked her to go along with him in this Dhundha she voluntarily went there. It is further submitted that Ganesh Ram's wife and Runki's mother were in the Dhani at the time when the accused came there and asked her to accompany and in case there is least truth in commission of forcible sexual intercourse then certainly there would have been lot of hue and cry and everybody would have been witness to the occurrence. On the contrary circumstances are incompatible in as much as no mark of violence has been found on the body including no injury on her genital organs. It is further submitted that her bangles have also not been broken. It is further submitted that she was first married to Budha, then she was given Nata to another man and a case was also instituted for abduction against Budha, yet she has stated that she has no sexual intercourse with anybody including her two past husbands before the date of occurrence She stated that she was a virgin till the date, the accused committed sexual intercourse with her. This statement of her has been found to be false, according to the statement of the Doctor, who has categorically stated, she is accustomed to sexual intercourse. Thus, it is submitted that she has no sanctity for truth and intends to hide the realities. About Ganeshram it is submitted that his conduct in the case is far from satisfactory. He has stated that he did not even narrate the incide to his mother who was in the Dhani and also did not say to anybody else in the village except Bhinyaram who is arch enmey of accused Gangaram. It is further submitted that before going to the police station it is an admitted case of Ganesh Ram that he went for the legal advice to Shri Ramsingh Kudi, an Advocate and the Member of Legislative Assembly and it was thereafter that he went to the police. He in fact even does not know the place where he had given the report. Thus, it is submitted that there is no corrobaration to the statement of the prosecutrix and the accused is entitled to the benefit of doubt.
(3.) MR . Mathur appearing on behalf of the State submitted that the learned Sessions Judge has discussed the evidence and law in details and the judgment of learned Sessions Judge, Merta does not warrant any interference. He submitted that the prosecutrix has categorically stated that Ganga Ram came to her and told her that he wanted to discuss some problem with her so she voluntarily accompanied him because he was quite elderly in age than her and she could not have suspected that he would commit rape on her. It is further submitted that both Ganesh Ram and Khinyaram had seen him going away with a dhoti in his hand and that supports the prosecution story. It is further argued that the report of the chemical analyst corroborates the statement of the prosecutrix.;